Today, Explained - Congress just broke the Internet

Episode Date: April 18, 2018

Donald Trump signed FOSTA into law a week ago today. The “Fight Online Sex Trafficking Act” looks good on paper, but Vox’s Aja Romano says it alters fundamental freedoms online. Plus Alex Levy, a Notre Dame Law School professor, says it won’t do much to curb sex trafficking, either. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Bird Pinkerton, podcast producer at Vox Media. Sean Ramosfaram, excellent podcast host at Vox Media. Thanks, Bird. I hear you might have a story about mattresses to tell me. Yeah, Sean. Don't tell it yet. We'll tell it in a second. First, I'll just say that, you know, one who is interested in mattresses could go to mattressfirm.com and use the code PODCAST10 to save 10% on a new mattress.

A week ago today, Donald Trump signed a bill called FOSTA into law. FOSTA stands for the Fight Online Sex Trafficking Act. That's what it was called in the House. In the Senate, they called it SESTA, the Stop Enabling Sex Trafficking Act. Either way, it sounds pretty good, right? Who doesn't want to fight sex trafficking? And this bill was a rare bird. Legislation that got nearly unanimous political support in 2018. 97 senators voted in favor of it. It's bipartisan. We have about 25, 28 co-sponsors now. And to me, this is the only way we're going to be able to slow this down and begin to turn the tide. But a whole lot of people say it's a terrible idea because FOSTA will change the way the Internet works. Broad language in the bill may sweep up legitimate voices along the way and impede on freedom of speech. The bill weakens something called Section 230,

which a lot of people say is the entire foundation of all of the sites we use to connect with each other. Without it, we wouldn't have the internet as we know it. That sounds like a hyperbolic description, but it's really, really not. Asia Romano writes about the internet at Vox, which means lately she's been writing about Section 230. Which was introduced in 1996 as part of the 1996 Communications Decency Act by two members of Congress, one a Republican and one a Democrat. So it was bipartisan legislation.

It was just a simple piece of text slipped into this enormous telecom bill. But the repercussions that it's had for the internet, for the growth of the internet, and the rise of every major platform that we know and love and hate and cherish, it all comes back to this tiny piece of text that was slipped into this bill two decades ago, which basically says that someone who creates a website or someone who hosts a website

is not responsible for content that another person writes on that website. Okay. So, so section 230 essentially means you can't blame a website for some comment, something, some person leaves on it or something like that. Right? Exactly. I'm thinking of like a practical example of that. Is that like, if I upload a video of myself jaywalking on YouTube, it's not YouTube's fault that I jaywalk? Exactly right. And more importantly, say in that video someone else is caught on that video and they're also jaywalking. They can't sue YouTube because you put that video of them jaywalking on the Internet.

Does that make sense? Yeah, but I imagine there's like a much more terrifying, toxic example of this. Sure. So think about every time you or someone you know has been harassed or targeted or made an object of hate speech. And now imagine that for every single instant of those tweets or those comments being directed at you or directed at anyone, Twitter could be held liable for what that person said. In that world that I imagine, Twitter doesn't last very long. Exactly. No platform could. And the reason that Section 230 has been so monumental is that it essentially was, quote unquote, what we call a safe harbor for any new website, any startup,

any company that needed to innovate and wanted to, you know, curry favor with investors. I mean, no investor is going to go near any type of website that is going to be held liable for what its users do. Like, that's just not going to happen. So Section 230 allowed the internet to flourish and grow. So how does Section 230 relate to FOSTA and SESTA? So what FOSTA-SESTA does is these bills essentially say, OK, but in an event where someone is promoting sex trafficking, in that event, these bills create an exception for Section 230 that allows prosecution to go forward. That doesn't sound so bad when a website ends up being a forum for sex trafficking. This Section 230 protection that all sites have, sort of by default, no longer applies.

Right. And this bill was specifically written to take down a specific website. And that website is Backpage, which you've heard a lot about because it's been in the news recently. Forty seven senators, almost half of the Senate are co-sponsoring a bill. They want to remove legal protections for websites that host prostitution ads. The bill is aimed primarily at one site, Backpage.com, it's called. Groups like Backpage.com, which is, you know, a website that we have investigated, are selling women and children online and really doing it without any ability for prosecutors or the victims to be able to stop it. Okay. Why was everyone after Backpage? So Backpage is one of a number of websites that have been perceived as fostering or facilitating actual sex traffic and sort of doing so in a knowing or tacitly complicit way.

And a number of other websites in the past have been seized by federal authorities during the course of their investigations. But Backpage has always been successfully able to defend itself until recently because it's argued that its Section 230 protections make it not liable for the actions of its users. Huh. So what's the status of Backpage now that the law has been passed? The law actually had no effect on Backpage, ironically. So in 2016, a federal judge basically found that Backpage was safe under safe harbor protection of Section 230 and was not liable. But then immediately that tie began to shift and Backpage began to lose appeal after appeal. And as of this month, judges in Federal

Circuit Court have said, no, you don't have any exemption under Section 230 and the feds have the right to do what they will with you. Federal agents today searched an Arizona house belonging to one of the website's founders as the federal government shut down the Internet site Backpage.com, saying it was an action supported by the Justice Department's office that fights child sexual exploitation. But it's important to note that all of this happened under existing law, which makes the argument that we didn't even need FOSTA-SESTA to begin with, because the law already is set up to provide exemptions in these cases. Wait, so the Congress almost unanimously passed this bill to shut down this website that got shut down anyway around the exact same time? Yes, exactly. So back page shutdown had nothing to do with this bill. Will this bill shut down other websites?

The bill already has shut down other websites. Things like Craigslist personals. Which is where a friend of mine met his wife. Yeah. I know several people who've actually met their long-term partners through Craigslist personals. It's a thing. But now it exists no more because Craigslist said when they shut down the site that they were doing it expressly because they didn't have the ability to ward off potential liability that they suddenly had under FOSTA-SESTA. And this has been something that we've seen elsewhere, too. We've seen Reddit shutting down specific subforums that were about discussing sex work and so

forth. We've seen sites like the furry dating site Pounced.org completely shut down. And they wrote this basically long manifesto basically saying, we're a very small website. We have done this freely for all of you guys for years. We don't have the ability to police ourselves against the possibility that the feds might come along and decide that we are, quote, knowingly assisting, facilitating or supporting sex trafficking. So needless to say, there could potentially be a lot more sites that feel just threatened

by FOSTA and thus forced into closing down. Right, exactly. And we've seen sort of movement among companies like Microsoft and Google to surreptitiously check and monitor their users to make sure that things are on the up and up. And there's no confirmed proof that that's because of FOSTA-SESTA, but there were a number of reports coming from users of those platforms that they had been scanning for certain terms and words immediately after the bills passed. Wow. Yeah. So does this mean that this bill has created some sort of divide between like big internet and little internet? It helps big tech.

It helps major established tech companies like Facebook, Google, Amazon, Microsoft, Oracle. Wait, I thought this was like a headache for Facebook because now they have to maybe, they're more liable for what people do and say on their website. Nope. Is that not the case? Nope, they don't care because they're big enough now that they can afford the threat of a lawsuit. But your uncle's motorcycle forum or your mom's knitting website, you know.

The grassroots internet. The grassroots internet does not have the ability to face the constant threat of litigation. We've been seeing a noticeable trend from websites like these larger corporations that have really privatized their sectors of the internet. They sort of don't really have smaller websites back anymore. Not to demonize them, but they aren't taking stands as fervently as they used to to protect and defend free speech on the Internet or to act in ways that would allow startup growth to happen. So now that we've seen these sort of holes poked in Section 230, is there likely to be more poking of holes? Yeah. Basically, there have been a number of legal challenges in recent years that have been slowly attempting to chip away at safe harbor provisions.

And I think that we're reaching a point culturally and in terms of the legal framework of how we think about the Internet where the question of whether we even need 230 is going to arise. I think given what we've seen from social media platforms in recent years, there are a lot of people who would probably be like, no, we don't even need free speech anymore. Make the websites all moderate their users and make them actually be accountable for what their users are doing and have to deal with the fallout if they fail to successfully moderate. And that sounds good in theory. Sounds un-American. Well, it also sounds like there are only three websites

on the internet, right? Like there's just Facebook and Twitter and Reddit and nothing else. But if you think about how the evaporation of Section 230 protection could completely obliterate all the small websites that you love and hold dear, then you can see that the challenges that seem to be encroaching upon 230, they represent different ideological beliefs in what the Internet should be

and who should control it. FOSTA-SESTA is already limiting the internet, but the whole point of this legislation is to curb sex trafficking. Will that work? That's next. This is Today Explained. Bird, what is your story about mattresses? So, Sean, I went to purchase a Mattress Firm mattress as per your many suggestions. Thank you.

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FOSTA just got approved and it seeks to fight online sex trafficking. So will it? No, it won't. Alex Levy teaches law at Notre Dame. She focuses on sex trafficking. First of all, to the extent that its endgame is to shut down big platforms, that's not going to serve the cause at all. Big platforms, including Backpage, which is the explicit target actually of this bill,

those provide a really great pathway to finding victims and apprehending traffickers and basically keeping the whole thing in sight of the good guys. We rely a lot in investigating trafficking and prosecuting trafficking on platforms to be our eyes and ears, basically, to report things, to respond to subpoenas, to help with investigations. There's a lot said about how these platforms provide access to victims to bad guys, but sort of by hypothesis, it provides the exact same access to the good guys. Who are the good guys and the bad guys in sex trafficking? The bad guys are the traffickers, right? Also customers who seek out non-consensual encounters.

And the good guys are actually, there's a wide range, really. There's law enforcement to the extent that it looks for victims of trafficking. There's NGOs that reach out. There's family members I mean you see actually a lot of news articles about how Good Samaritans or family members or even journalists find victims on these websites and again it's really specifically Backpage

that's talked about the good people are wide ranging there's a lot of people who want to fight trafficking and the thing about Backpage and the thing about the wider, more visible platforms is that it allows people who don't have any kind of specialized knowledge to do that. You know, people who don't know how to access the dark web. The dark web being like Silk Road, being like where people go to trade the shadiest shit on the internet, drugs, guns, sex, mayhem?

Yeah, moving away from the big platforms, sex trafficking can go a lot of places. There's dark corners of the internet. Some of them are accessible only to people who have a lot of proficiency with the internet and technology, and others don't require that kind of proficiency, but they're more scattered. They are better at perhaps encoding things in a way that makes them opaque to all the good guys I mentioned. So FOSTA-SESTA is probably going to move sex trafficking into these dodgy shadows of the internet. But what about the consensual stuff, like your everyday pedestrian consensual sex work?

The effect on sex workers is different. And I think it's extremely important to listen to sex workers on this front. So I'm speaking, having heard their accounts, my understanding is that they often rely on peer networks that are online to stay safe. Because sex work is criminalized, they rely quite a bit on these peer networks

because they often don't have recourse to the law, to law enforcement, to protection. They need these websites to communicate things about dangerous clients, for instance, to communicate other ways of staying safe. There was also a study, a very good empirical study from Baylor University, that correlated the availability of certain platforms, specifically the escort section of platforms, with a lower homicide rate in the demographic that is most typically associated with sex work. The authors do come up with, I think, some very interesting and strong theories for why there might actually be a causal link there. Access to platforms, access to these websites is a way of staying safe. If this legislation doesn't do anything to really address sex trafficking, what do you think it does do? What will change? I think it moves it out of sight. I think, you know, there's this claim that the internet caused

an explosion in sex trafficking. But what it clearly did do was bring a lot of things, you know, good and bad, and some of them very ugly, onto the radar of average people. I do believe that this law will decrease the number of reports of trafficking, and I think people are going to be very soothed by that, and they shouldn't be. This is something that's, in any event, not an ill-intentioned effort to move ugly things out of sight. The actual fight against sex trafficking is very uncomfortable. It's very ugly. It forces us to confront bad things and things that are not necessarily particularly exciting to fight, right?

Fighting homelessness, improving the foster care system, none of that is as cinematic as fighting Backpage. The effect of this law will be to allow us to avoid that confrontation and to create an environment that's as hospitable, if not more hospitable, to this sort of exploitation. Alex Levy teaches at Notre Dame Law School I'm Sean Ramos-Firm this is Today Explained Bird, did you really find all that treasure in your mattress?

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